Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020
(3 years, 9 months ago)
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Baroness Vere of Norbiton
That the Regulations laid before the House on 15 June be approved.
Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 20th Report. Approval period expires 11 July.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, the Government are committed to ensuring the safety of passengers travelling on the transport network during the Covid-19 pandemic. We have therefore introduced these regulations to make it mandatory for passengers to wear a face covering while using public transport services in England from 15 June.
To give a bit of background, this instrument was made on 15 June under powers conferred by the Public Health (Control of Disease) Act 1984. These regulations are exceptional measures brought forward to mitigate the unprecedented impact of the Covid-19 pandemic and to comply with all the Government’s obligations relating to human rights. Although these regulations are a necessary response to the serious and imminent threat to public health posed by the spread of coronavirus, they are being brought before your Lordships’ House today for the scrutiny and debate they require under emergency procedures approved by Parliament for such measures. These regulations help save lives. That is why Parliament has given Ministers these powers.
Although our advice remains to work from home if you can and to avoid public transport where possible, there is now an increased demand for public transport as sectors of the economy reopen and more people return to work. The public transport network is vital to the safe reopening of the economy and the regulations were made to coincide with the easing of other lockdown measures to help protect people from each other on public transport, where it is not always possible to maintain social distance.
The evidence shows that wearing a face covering offers some protection from transmitting the virus to others. These regulations sit alongside existing advice on social distancing and practising hand hygiene, which remain critical. We have worked closely with transport operators to ensure widespread communication around the need to wear face coverings on public transport and we have set out the detail of this policy in our guidance, including information on enforcement and the exemptions in place for those unable to wear a face covering.
As expected, initial reports from operators and Office for National Statistics surveys show widespread compliance with the requirement to wear a face covering on public transport. There is and continues to be public support. We will continue to monitor compliance and our approach to enforcement.
As I said, the regulations introduce a requirement for passengers to wear a face covering while travelling by public transport in England from 15 June unless they are exempt or have a reasonable excuse not to do so. The regulations apply to passengers travelling on public transport in England by bus, coach, tram, ferry, hovercraft, cable car, aircraft, and domestic and international trains. School transport services, services provided by taxis and private hire vehicles, and cruise ships are excluded from the regulations.
The regulations describe a face covering as a covering “of any type” covering the wearer’s nose and mouth. People should make or buy their own. Although the Government expect the vast majority of people to comply with these changes voluntarily, the regulations include powers for operators and the police to deny access to a service, to direct someone to wear a face covering, or to direct someone who is not wearing a face covering to leave a service. Operators have discretion over whether they choose to use these powers; they do not have an obligation to do so.
The police also have the power to remove passengers from vehicles and to use reasonable force if necessary, as well as the power to direct an individual who has responsibility for a child aged 11 or over to ensure that the child complies with the regulations. If a passenger does not comply, there are new powers for the police and for TfL authorised personnel to issue a fixed penalty notice of £100 or £50 if paid within 14 days. Children younger than 18 cannot be issued with a fixed penalty notice.
The regulations create new criminal offences that are punishable with an unlimited fine. The Crown Prosecution Service has prosecution powers, as does Transport for London following a designation order made by the Secretary of State for Transport on 30 June. However, engagement rather than enforcement is our preferred approach, with enforcement as a last resort. We expect to see a gradual ramping up of enforcement, supported by significant communications campaigns, over the coming months.
Although we want as many people as possible to wear face coverings, we recognise that some people are not able to wear one for a variety of reasons. As a result, the regulations exempt certain people and provide a non-exhaustive list of what is described as a “reasonable excuse” not to wear a face covering.
A review clause is included in the regulations, requiring a review of the need for the requirements imposed by the regulations at least every six months. A sunset clause is included so that the regulations expire at the end of 12 months after the day they came into force. We will continue to monitor the impact and effectiveness of this policy in the weeks and months ahead and will develop our approach to enforcement and communicating the policy as necessary.
The mandatory requirement to wear a face covering on public transport is a key addition to our safer transport guidance to passengers and will help maintain public health as lockdown restrictions are eased. I commend the regulations to the House.
Lord Blunkett (Lab)
My Lords, obviously we are confirming reality but also reinforcing the importance of these regulations to prevent ill health and to persuade people to get back on public transport, rather than have the upsurge now occurring in the private use of cars.
In the half-minute I have left, I will draw attention to the importance of people being extremely sensitive, and of operators and those operating in the public transport system looking out for two elements. One is people who lipread, who obviously will not be able to do so. The second is those who cannot see and rely on hearing. In the first case people obviously will be wearing face coverings and cannot be lipread. In the other, people will be wearing face coverings and will be difficult to hear. I am putting a word out for tolerance and perhaps some public information on public transport that says “Look out for those who do not have the facility you have.”
Baroness Jolly (LD) [V]
Public transport, particularly that serving crowded areas and centres of population where people work, is often the only practical method of travel. These regulations are timely—some might say overdue. They make sense and for the most part they are adhered to. Last week I was in London. Buses were emptier than usual, but most of those travelling were wearing masks.
One area of concern is that evidence suggests that young men are less inclined to be compliant. I understand that it might not be seen as cool—nor is being dead, or passing the virus to strangers, friends or family. There is a host of masks online for less than £5, specially designed for the youth market. Can the Minister tell the House what measures of engagement have been used in large centres of population, where public transport is really the only way of getting around? Did local behaviour change as a result of it?
Lord Patel (CB) [V]
My Lords, while supporting these regulations, I feel their scope is very limited. Scientific evidence clearly shows that Covid-19 is spread as an aerosol. The president of the Royal Society yesterday referred to the evidence that the Royal Society has published. Many other countries have made it mandatory to wear a face covering in all public areas, including shops. On the basis of the scientific evidence, should the Government not look further to see whether face coverings should be made mandatory in all public areas?
Lord Sheikh (Con) [V]
My Lords, I support and approve of the regulations requiring all passengers on public transport to wear a face covering, subject to certain exemptions. I note that failure to do so when asked is an offence subject to a fine of £100 and not being allowed to travel. How strictly are these regulations enforced?
When I go out, I always wear a mask. I fully support the guidance issued by the BMA calling for face coverings to be worn by the public as a matter of course. It is felt that if a person is not wearing a face covering and has the infection or is a carrier, the risk of passing it to another person is 70%. If the first person is wearing a face covering, the risk is just 5%. If both persons are wearing face coverings, the risk is reduced to 1.5%. Why is the BMA guidance not being followed by the Government?
Lord Campbell-Savours (Lab) [V]
My Lords, I have spent 17 weeks in this House arguing for mandatory masking. I now move on to the type of mask, as certain masks are inappropriate. Exhalation valves on certain masks, in particular the N95, are designed to make it easier to breathe out because their one-way valves release exhaled air without forcing it through a filter. That is a major problem when the mask is meant to protect others from the wearer, who may be infected. Unless you are using an N95 in a high-risk healthcare setting—that is, a healthcare worker usually wearing one for comfort—where the concern is what you are inhaling, not exhaling, do not use a valve mask. When the Government finally concede on wider mandatory masking, which is inevitable, the regulations should reflect this. Otherwise, they will only make matters worse.
Baroness Barker (LD)
My Lords, will transport providers, local authorities and the police have the power to share information to monitor compliance or defiance? Will it be possible for them to identify serial offenders? These regulations apply to people with disabilities, so will the information be made available in suitable media, such as Makaton and Easyread? Will train operators be required to make masks available for purchase on board for people who may have forgotten or lost their own? Finally, what information will be given to passengers and staff responsible for implementing these regulations about what constitutes a suitable mask for a journey—a 10-minute bus ride versus a four-hour flight in a plane?
Baroness Watkins of Tavistock (CB) [V]
My Lords, I fully support these recommendations but also the comments of other noble Lords. I am particularly concerned about the exemption for school transport services. In cities many children travel to school on normal public transport and will therefore be expected to wear masks or face coverings on their way to school if they are over the age of 11, yet no such protection is mandated for pupils from rural areas, who often travel on school transport services such as coaches and buses.
This morning on Dartmoor I saw a bus heavily steamed up due to rain, with all its windows shut and several pupils on board going to school. Is it not vital that Her Majesty’s Government review and amend the guidance urgently to include school transport services for secondary school pupils from the beginning of the new year? Rural pupils should be afforded the same protection as their city colleagues. I respectfully suggest that this may increase school attendance by reducing parental fear of transfer of Covid during travel to school.
Lord Faulkner of Worcester (Lab) [V]
My Lords, I refer to my railway interests as declared on the register. I wholeheartedly support the wearing of face coverings on public transport and certainly wish to see the regulations enforced, but one aspect alarms me. A substantial number of rail passengers with a variety of disabilities, which my noble friend Lord Blunkett has already referred to, are unable to wear a face covering and may now face abuse from other customers.
Happily, there are train operating companies meeting this challenge by issuing sunflower lanyards free of charge so that they do not have to explain their lack of face covering to other customers. I understand that GWR has already posted out 160 of these lanyards. We need greater awareness of exemptions so that we can all be more considerate and less aggressive if we see someone without a covering. Will the Minister offer reassurance to those who cannot wear face coverings and tell them that they can travel and—following her colleague, the Minister for Disabled People—endorse this scheme?
Baroness McIntosh of Hudnall (Lab) [V]
I have a couple of short questions for the Minister, of which I have given her notice. The first concerns children and to some extent relates to what the noble Baroness, Lady Watkins, said. What is the rationale for exempting under-11s? Under-fives I could understand. Most children under 11 do not travel alone, so Regulations 5(5) and 5(6) could and should apply. Many, if not most, children over 11 do travel alone on public transport—for example, to and from school. I also ask the Minister about Regulation 7(1)(b), under which under-18s cannot be fined. How will enforcement work for them?
How is “reasonable excuse” to be monitored? In her answer during my PNQ on 25 June, the Minister hinted at lanyards or other types of proof. Does she have any further information on this?
Finally, can she explain why private hire vehicles are excluded, particularly in view of the higher than average Covid-19 mortality rate among drivers of these vehicles?
Lord Rennard (LD) [V]
My Lords, face coverings have been mandatory on public transport since 15 June, but since then I have seen people on buses not wearing them and removing them to make phone calls, have a drink or, in one case, floss their teeth. How can the travelling public be persuaded to keep masks on throughout their journey?
Can more be done to assist people with disabilities, who should not have to remove their masks to explain their need to occupy a seat? Special freedom passes are issued in London to extremely vulnerable people with disabilities. Could special face masks not also be issued to these people, displaying a request to “Please offer me a seat”, to avoid them having to remove their masks to request this?
The Deputy Speaker (Lord Duncan of Springbank) (Con)
The next speaker is the noble Baroness, Lady Finlay of Llandaff. No? We may return to her later in the proceedings. I will move on to the noble Baroness, Lady Altmann.
Baroness Altmann (Con) [V]
My Lords, I accept the need for face coverings, but do the Government have plans to ensure that people know what type of face covering is most appropriate—what type of material and how it must be worn? Is there official guidance on approved standards? A face covering could be made of mesh, which presumably would not be appropriate, or a scarf that is porous—again, not acceptable. Would a full-face plastic visor be considered acceptable?
Can we perhaps help people access approved face coverings, to reassure them that they will be doing the right thing for protection? We could possibly even create opportunities for production of such face coverings in the UK, encouraging schools or prisons to manufacture the appropriate type of covering and avoiding the uncertainty about what is an approved type of mask or a standard design.
Lord Clark of Windermere (Lab) [V]
My Lords, I wholeheartedly support the wearing of face masks on public transport and, indeed, more widely. My reason for doing so is neatly summarised in the Government’s own advertising campaign, which depicts a young woman wearing a mask and saying:
“I wear this to protect you. Please wear yours to protect me.”
I find that completely convincing and, as the Government have paid for it, so must they. Why will they not extend the logic to other areas where the public are caught in contained spaces?
Lord Roberts of Llandudno (LD) [V]
It is mandatory to wear a face mask on a bus or train in Scotland and in England, but not in Wales. This gives us a bit of a difficulty. We must have continual understanding between the Welsh Government and Westminster. I can get on a train in Llandudno, Wales, without having to wear a mask, although I will. I get to Chester, which is in England, so I must wear a mask, and then I go on to Wrexham, which is in Wales, so I do not need to wear a mask, then to Oswestry, which is in England, et cetera. You are in and out, in and out. We must get some understanding so that the people of Wales are as safe as the people in the rest of the United Kingdom.
Lord Holmes of Richmond (Non-Afl) [V]
My Lords, I wholly support the wearing of face masks on public transport. I have two questions for the Minister. First, I find the definition in the regulations of a face covering or a mask particularly loose and woolly. Would it assist all the public if there was a reconsideration of this definition to make it clearer, and give examples, to bring this in front of people in a much clearer and more precise way?
Secondly, masks are good for public transport and a whole host of other environments, not least supermarkets and other places of mass congregation indoors. Does the Minister agree that it would make sense to extend the wearing of face masks to a number of other environments? How long will it be before we get to the position, which is clearly common sense, of mandatory face mask wearing in many environments? Does the Minister agree that we should all march to the slogan “Cover up and kill Covid”?
Baroness Finlay of Llandaff (CB) [V]
My Lords, mask wearing must accompany ongoing respect of social distance. Many people emerging from shielding depend on public transport to resume their lives—hence our campaign for a universal prompt symbol. As masks aim to decrease droplet spread, a public education programme is needed to raise understanding of hygiene and infection control, particularly in public areas and touching surfaces. Touching the face or fiddling with the mask is just as risky with gloves on. No-touch techniques and social distancing must be normalised long-term. Probable airborne infection of Covid-19 has implications for air-conditioned transport units, and UK manufacture of washable, recyclable, suitable masks must be stimulated. Is such infrastructure development in the wider national plan, as this will probably be needed long-term?
Baroness Primarolo (Lab) [V]
My Lords, I associate myself with the comments that other noble Lords have made regarding the importance of wearing face masks properly, and welcome the Minister saying that the Government’s aim is, wherever possible, to achieve voluntary compliance through engagement. Therefore, when will the Government have a consistent and clear campaign about when to wear face masks, based on social responsibility? At the moment, the communications are weak, confused and inconsistent, as has been shown by the comments of other noble Lords. I have travelled on public transport, and not everybody is wearing a mask or wearing it properly.
Secondly, when will the Government ensure that there is a presence on public transport encouraging and reinforcing the need to wear face masks properly, as other countries have done? And finally, will Ministers lead by example and wear face masks in public, making it crystal clear that these regulations apply to everyone in this country, because it is about our personal safety?
Baroness Bull (CB) [V]
My Lords, Regulation 4 provides a list of reasonable excuses for exemption, including physical or mental illness, disability or the inability to wear a mask “without severe distress”. The extent of this list is welcome, but the inclusion of “severe distress” as an excuse raises questions about how this can be flagged by an individual or their supporter without causing additional distress. The discretion of operators, to which the Minister referred, is clearly critical. Publication of this legislation on a Sunday, for implementation the next day, left no time for any process of adjustment or awareness campaigns, or for the production of posters highlighting exemptions. Stories emerged of disabled people reported by fellow passengers and of staff refusing entry, even when the exemption had been explained.
It is clearly in the interests of those with mental health issues or impaired decision-making to be supported to wear a mask, but it will not be possible for everyone, which leaves the threat of criminal sanction hanging over the individual and, possibly, the person supporting them, as Regulation 6(2) makes it an offence for a person to obstruct, without reasonable excuse, any person carrying out a function under these regulations.
Can the Minister press the importance of government messaging making it clear that not everyone will be able to wear a mask, and can she confirm that transport staff are receiving adequate training to deal sensitively with people exempt from this legislation?
Lord Wei (Con) [V]
My Lords, I thank the Government for this measure, which is welcome, but I wonder whether this is a case of “too little, too late”. In other countries, masks are being encouraged, not only on public transport but in many other contexts. We have had mixed messaging over the past few months about whether masks are important, and conflicting views from the scientific community both in the UK and globally. Can the Minister reassure us that bringing this measure in now has nothing to do with the availability of masks, and that the concern about asking the public to wear masks, whether on public transport or not, was not driven by a desire to ensure that the NHS and other care facilities did not run out of masks? Can the Minister reassure us that these concerns are being dealt with and that there is adequate supply, such that, if necessary, we could increase mask usage beyond public transport?
Lord Foulkes of Cumnock (Lab Co-op) [V]
As the noble Lord, Lord Wei, has just said, the Government’s message on face masks has been one of total confusion. Some of us remember when Ministers were telling us that all face coverings were not only of little use but could in fact be counterproductive. What has changed? Since the medical officers of all four nations meet and give us all the same advice, why are the rules on face coverings different across all four nations, as the noble Lord, Lord Roberts, so eloquently asked? Why are they required in shops in Scotland but not in England? Why are they needed on English buses and trains but not in supermarkets or pubs? Like the Government’s overall record on dealing with coronavirus, this is a total shambles. Can the Minister tell the House what the Government will be doing to provide coherent and consistent advice on the wearing of face coverings in all public settings? Having said all of that, I do of course support the instrument.
The Earl of Clancarty (CB) [V]
My Lords, I welcome these regulations, but they do not go far enough. In view of the WHO’s acknowledgment that droplets lingering for hours in the air in enclosed spaces are a significant and perhaps the primary way of spreading the virus, customers should be wearing masks in shops, as Scotland insists on. Likewise, there must be questions about opening up pubs and restaurants. Again, Scotland is commendably cautious in allowing only outside spaces to be used.
More could be done to get the wearing of face masks up to 100%. All British Transport Police and transport staff should be wearing masks, including on station concourses. Groups of people are taking their masks off to talk to each other once they are on the train. There should be frequent announcements by drivers on trains and buses. Notices in stations should emphasise that this is a civic duty: wearing a mask protects others. Finally, I very much agree with the noble Baronesses, Lady Watkins and Lady McIntosh, about schoolchildren on school buses. We cannot be unnecessarily importing the virus into schools or homes.
Lord Snape (Lab) [V]
My Lords, we are debating these regulations today as a result of a reference by the Scrutiny Committee, which was
“critical of the timing of these Regulations which were laid after they had taken effect and too long after the initial announcement.”
Like my noble friend Lord Foulkes and the noble Lord, Lord Roberts, I have to be critical of a Government who shoot first and ask questions afterwards. For goodness’ sake, Ministers ought not to make announcements and pronouncements like this until they have properly consulted. I ask the Minister to confirm that it will not be the bus driver’s responsibility to ensure that people are wearing masks.
I endorse the memorable intervention earlier by the noble Lord, Lord Roberts. Why is there a difference between trains in England and trains in Wales? What happens with trains that meander between the two countries, as they do along the Welsh border? Is it necessary to don the mask in England but then, if you want, take it off in Wales? No wonder the Welsh First Minister called this whole business a shambles. I ask the Minister to ask the Secretary of State to talk less in future and consult more.
Baroness Uddin (Non-Afl) [V]
My Lords, conflicting messages have been extremely unhelpful. I ask the Government to make face coverings mandatory in all public places and to agree that engagement rather than punitive measures should be pursued. Will the Government reduce the fines, particularly for those living on low pay who may not be able to purchase masks? Cannot Transport for London have a supply available for passengers, rather than excluding them from travelling?
I reinforce the need to be more compassionate towards and aware of people living with autism and learning disabilities, who may be experiencing distress at having to wear masks. I have a 41 year-old son with autism who is becoming accustomed to the mask but was very distressed in the beginning.
I associate myself with the comments of the noble Baronesses, Lady Bull and Lady McIntosh, and others. I ask the Minister to ensure that minority media channels in particular be utilised to extend the educational awareness campaign on face covering, which should be calling for the mandatory wearing of face masks in public places for the good of us all.
Lord Liddle (Lab)
My Lords, I want to follow up my noble friend Lord Snape’s point about process, as a member of your Lordships’ Secondary Legislation Scrutiny Committee. The Government announced this policy on 4 June and it came into effect on 15 June, yet we are debating it on 8 July. We kid ourselves if we think this is effective parliamentary scrutiny; it is in fact executive diktat. It would matter a lot less if we had a Government who had competently handled this crisis, but the controversy over face masks is a classic example of the Government squandering public good will by offering confusing and contradictory advice over the past few months. Until a vaccine is available we must find a way of living with Covid, and face coverings are going to be an important part of a comprehensive plan. However, Parliament must recognise that at the moment, it is failing to hold this shambolic Government to account.
Lord Hussain (LD) [V]
Although I support this legislation, I agree with those who say that it does not go far enough. I support the wearing of masks in all public places, not just on public transport. Given how many black and minority ethnic bus drivers and other transport workers have died from Covid, can the Minister reassure us that all transport employers have done a full impact assessment for black and minority ethnic drivers and staff?
Lord Triesman (Lab) [V]
My Lords, these regulations plainly do not go far enough. Two days ago, when intending to board a bus at Swiss Cottage, which is hardly a violence hotspot, I could see that almost everyone on that bus and on the other buses around were not wearing face masks. I pointed this out to the man nearest the door and he told me, in terms that I will not repeat, to go away or he would do goodness knows what. I did not get on the bus because of Covid, rather than because of him. Generally speaking, there are of course no police to hand—and why would there be? If a driver can refuse to allow someone on to a bus who has not paid the fare, it must be possible to have a strict rule that no one will be allowed on to a bus unless they are wearing a face mask or a lanyard showing that they are exempt from doing so. As I understand it, 40 TfL bus drivers have died from Covid. It should not fall to the bus drivers, but on the other hand there is a power that could be exerted.
Baroness Wheatcroft (Non-Afl) [V]
My Lords, earlier this week the Minister told me that 86% of travellers on public transport are now wearing masks. That is good but the remaining 14% pose a threat to other travellers and clearly, they have not responded to encouragement. What we need now is a firm approach that will make it clear that if people do not follow the regulations, they will face heavy fines, and that if they should attack the drivers who refuse them entry, they will be severely punished. We have managed to stop drinking on public transport in London by making it very clear that failure to comply with the rules will be punished. Does the Minister agree that encouragement has gone as far as it is going to, and that it needs to be made clear to the remainder that they will not get away with breaking the regulations?
Lord Balfe (Con) [V]
My Lords, in the beginning it was very simple: stay at home and save lives. However, as time has gone on, good behaviour fatigue has set in and that is where we are now. First, as has been pointed out by a number of speakers, the regulations are confusing because they vary between different countries, so my first point is that we need to keep it simple. If the three devolved Administrations and the UK Government cannot get an agreement, frankly, we are in a pretty poor situation.
Secondly, we also need to get some idea of whether or not this is the right policy. I suggest, as I always do, that we should talk to our European colleagues, who seem to have a mass of different ways of dealing with this, to see if there is a common position and even a common science for us to fall back on. If we can do that, we might get some obedience to these new regulations.
Lord Hendy (Lab) [V]
My Lords, I support the regulations, which make it mandatory to make a wear a form of personal protective equipment. As the Department for Transport’s Explanatory Memorandum says:
“Mandating the use of face coverings, when used alongside other measures, therefore offers a reasonable protective measure to reduce the risk of infection on contamination by a virus that presents a significant harm to public health.”
Like public transport, many workplaces have a similar risk of infection because they contain a number of people in a confined space for significant periods of time, with limited changes of air. Yet, notwithstanding the Personal Protective Equipment at Work Regulations 1992, instead of making mandatory the provision of face coverings at work, the Government have published eight sets of guidance advising that workplaces should not encourage the precautionary use of PPE. In light of the regulations under debate, how can the Government justify advising employers not to adopt at work what the Department for Transport describes as a “reasonable protective measure” on public transport?
Baroness Meacher (CB) [V]
My Lords, I welcome these regulations, except of course that they focus exclusively on public transport. Rigorous international comparisons show very clearly that those countries that have been very successful in fighting Covid-19 are those that have introduced three low-cost interventions, including the compulsory wearing of face masks, not only on public transport. Along with many others, I therefore ask the Minister to raise with her colleagues the importance of government action to require the wearing of face masks in shops and elsewhere until we have Covid-19 under control. I realise that this is not the responsibility of the Minister herself, but there is no point at all in people avoiding the virus on public transport, only to catch it when they go shopping.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I am just as annoyed as some other noble Lords about the way that we are being governed by ministerial diktat, but I would like to be helpful on this particular issue, so I have three quick points. Is the Minister convinced that enough has been done to explain the change in advice on the public wearing masks? Is anything being done to tackle the misinformation going around online that wearing masks is dangerous and you can suffer from carbon dioxide poisoning or lack of oxygen? Finally, can Ministers—and the Prime Minister—be seen wearing masks so that this behaviour becomes more normal? The more of us there are wearing masks, the more others will do it.
Viscount Trenchard (Con)
My Lords, for the first time, perhaps, I find myself in full agreement with the noble Baroness, Lady Jones.
I have had the good fortune of living and working in Japan for 11 years. When my wife and I first arrived in that country, we were initially surprised to observe how prevalent the wearing of masks is and how totally normal it is perceived to be, not only on public transport. Anyone who has a cold or the slightest sniffle is, effectively, obliged to wear a mask in order to avoid infecting others. Most scientists recognise that the need for social distancing is greatly reduced by the wearing of masks. The Japanese parliament has continued to operate much as normal throughout the pandemic and all Members of both Houses meet in their Chambers. They never once considered introducing remote voting. They wear masks at all times except for eating and drinking.
I wanted to show that it is even possible to speak and be understood while wearing a mask, even though a noble friend who is a Minister told me that I would expose myself to ridicule by wearing a mask to speak today. Does my noble friend the Minister not agree that, if all noble Lords wore masks, we would be able to resume normal working in this place much sooner than otherwise? Would it not also send the right message to the country at large?
Baroness Randerson (LD) [V]
My Lords, this SI is the outcome of a long saga about the efficacy of wearing masks. Early in the pandemic, controversy raged over the Government’s failure to provide adequate supplies of PPE. The daily news featured scientists and clinicians explaining how vital decent masks are. If doctors and nurses are protected by wearing masks, then ordinary people are too. But the Government took the position that masks were of no benefit. The strong suspicion is that their main consideration in maintaining this position, after it ceased to be credible and the WHO advice was clearly changing, was to avoid a surge in demand for masks when there was already a shortage.
When government advice changed on 11 May, it was carefully scripted so that any face covering would be helpful. The clue is in the title of this legislation: face coverings, not masks. Government representatives were even claiming that the use of masks by the general public could give people a false sense of security. I have used a mask since the very early days of the pandemic. It is uncomfortable and I have no chance of forgetting it is there, so it constantly alerts me to the hazards of my shopping trip.
Confused government messaging has undoubtedly had an impact on our ability to fight this virus. Evidence on the wearing of face coverings on public transport shows a steady increase in compliance. If compliance was low in mid-May that is probably because, the week before, the Government were telling us that masks were not necessary. All social change takes some time to bed in, to create a new normal for behaviour. I have recently used both trains and tubes, and almost all passengers were wearing masks, albeit there were not that many other passengers at all.
On 4 June, the Secretary of State announced that face coverings would be mandatory from 15 June, when this SI was laid. The Secondary Legislation Scrutiny Committee has drawn attention to the fact that these regulations were laid long after they had taken effect and too long after the initial announcement. This is government by decree, and we must not get used to it, because it is a long way from acceptable democratic process. Can the Minister explain why, having advised us to wear face coverings on 11 May, the Government did not consult the industry at that point but left it until after the announcement that it would be compulsory on 4 June? Consultation after the decision—even this debate is being held at the very last possible minute.
The debate has now moved on to who should enforce this, and I agree with those noble Lords who say that bus drivers, for instance, should not be expected to do this job. There are quite strong enforcement powers in here for the police but, in practice, enforcement will largely be via the court of public opinion. There are dangers of a vigilante approach.
Several categories of people do not have to wear face coverings, many of them in vulnerable groups. They are not expected to provide written evidence, but it would help them a lot if they could carry a certificate, or even wear a badge if they wish to, so they can easily explain their situation. Do the Government have such a scheme ready and waiting? If not, I hope that one is in preparation. The regulations use both the terms “exemption” and “reasonable excuse” for those not required to wear a face covering. Can the Minister explain the difference between the two?
As my noble friend Lord Roberts has illustrated very cleverly, there are differences between this English legislation and the situation in Wales. Can the Minister assure us that there have been thorough discussions not only with the Welsh Government but with all cross-border transport operators?
Finally, I wear a mask to protect other people, rather than to protect myself. But those who object to wearing a mask often say that they, personally, are not afraid of the virus. As my noble friend Lady Jolly has pointed out, these are often young men. They have missed the point. Can the Minister assure us that the Government will hold a communications campaign to raise public awareness of both why and how masks are important?
Lord Rosser (Lab) [V]
My Lords, I will try to avoid repeating too many of the questions that have already been asked.
We support the instrument, which provides for the mandatory wearing of face coverings on public transport by passengers without exemption or a reasonable excuse. As has already been said, the regulations came into force over three weeks ago. At the moment, the issue for most public transport is not the lack of services but the lack of passengers, who have been deterred from using buses and trains by continuing government messaging that such journeys should be made only if they are essential or unavoidable. In most cases, the number of passengers is still below the level allowed, even under the social distancing requirements. Station car parks, usually full, continue to remain largely empty. The pubs may now be open, but presumably the Government do not support the use of public transport to get to and from the pub. Perhaps the Minister could confirm that while this is the Government’s position, it is apparently okay to journey to the pub for a drink in your own car.
The Explanatory Memorandum says that while face coverings are not a substitute for distancing and hand hygiene, they can offer some limited protection to others, particularly where distancing is difficult to manage. Yet there is some difference of view over the extent to which face coverings are actually being worn, or appropriately worn, particularly by young men, between some of those who are travelling on buses and trains—such as my noble friends Lady Primarolo and Lord Triesman—and the Government, who say that there is very high compliance. Maybe there is a difference between the percentage of passengers wearing a face covering when going through the barrier, or getting on a train or bus, and the percentage of passengers continuing to wear a face covering appropriately once they are on the train or bus.
The Minister in the Commons made reference to more people being on duty across the railway network to encourage compliance, but the instrument provides public transport operators with discretion over whether they choose to use their powers; they do not have an obligation to do so. Does the Minister know what percentage of bus and train operators intend to use their powers to deny someone access to a service if they are not wearing a face covering, or to direct them to leave a service if they do not wear a face covering when asked to do so? Presumably, compliance and enforcement are crucial to achieving the purpose of this instrument. Do the Government accept that an operator’s staff should not be expected to enforce denial of access to a station or service, or eviction from a service or station?
The Explanatory Memorandum seems to accept that social distancing cannot always be enforced on public transport, stating that:
“Social distancing is likely to be increasingly difficult to manage … as restrictions are relaxed and demand for transport services increases.”
According to the Explanatory Memorandum, the Government’s Chief Scientific Adviser has noted that
“face coverings would offer some benefit in crowded transport environments, such as the London Underground … where distancing is not possible … in which people are potentially crowded for more than 15min”.
Mandatory wearing of face coverings will, says the Explanatory Memorandum, “provide greater confidence” to the public and will “benefit business”,
“as people will be more likely to use the public transport network and will be more likely to travel to shop.”
Does that mean that, with mandatory face coverings, the Government now encourage the use of public transport to travel to a city or town centre to go shopping for non-essential items? The Government’s messaging on when and for what purposes they encourage or support the use of public transport appears to be becoming a little confused.
The messaging is also less than clear in another way. This instrument provides for the mandatory wearing of face coverings on aircraft. Some airlines are apparently booking 100% of their seats on an aircraft, which presumably means that, with the wearing of face coverings, social distancing requirements are not being applied. If this is being done with government acceptance, why do the Government regard this as safe for passengers on aircraft but unsafe on buses and trains? There must be a good reason, and it would be helpful if the Minister could spell out what that reason is.
I repeat that we support this instrument, which we hope will encourage more people to feel that travelling by public transport will now be much safer. However, I and other noble Lords would like a response from the Government to the many questions and issues that have been raised in the debate today.
Baroness Vere of Norbiton
My Lords, I thank all noble Lords who have taken part in the debate today, and particularly those who forewarned me of the issues they were going to raise; that is incredibly helpful when there are so many speakers in a debate. I will try to cover everything, but, if not, I will of course write.
The noble Lord, Lord Liddle, seemed a little irritated by the Government on this one. However, engagement with the transport operators has been continuous since the start of the Covid pandemic, and of course we discussed face coverings with them. We announced the policy on 4 June and then talked about how it would be put into operation with the transport operators and the devolved authorities, which I will come back to a little later.
Noble Lords will recall that 15 June was the date on which non-essential retail was opened. Prior to that, there was very little demand at all on public transport. We therefore felt that 15 June was the right time to put this in place. However, given the urgency of the situation, we felt that it was necessary to use the “made affirmative” procedure; it has been used before, in particular for some of the Brexit SIs, but it is not used lightly by the Government. In this case, we felt that it was entirely appropriate, given that it was a rapidly changing situation.
As noble Lords will have heard many times before, the Government are guided by the scientific advice as it develops—and the scientific advice has developed. Unfortunately, that may mean that, with hindsight—hindsight is a marvellous thing in a pandemic—one could say that communications were confused, but actually, it is that the scientific advice has developed. SAGE now advises that using a cloth face covering, as a precautionary measure, could be at least partially effective in enclosed spaces, such as public transport, where social distancing is not always possible, in particular where there is a risk of close social contact with multiple people who a person does not usually meet. Of course, we looked at the advice from SAGE and at academic articles when making the decision that we have now reached.
My noble friend Lady Altmann asked whether or not we should have standards for face coverings. We deliberately wanted to avoid being prescriptive about the form that a face covering should take, because it should be easy for people to put something over their nose and mouth and get on public transport. I reassure her that wearing, for example, a visor that covers the mouth and nose, and which might be made out of plastic, would be in scope. We expect people to buy or make face coverings, and there is guidance on the government website as to how to make them. I know that cheap face coverings are widely available. I bought mine on the internet. They appear to be made of offcuts from ladies’ underwear, but they cost very little and they do the trick.
I return to the devolved Administrations. I have had many conversations about the devolved Administrations in my time as a Minister, and, if I may say so, most of them are complaints that the devolved Administrations are not being allowed to diverge. Now, we are in a situation where a number of noble Lords are incensed that the devolved nations have been allowed to make decisions for themselves. I remain confused.
The noble Lord, Lord Roberts, talked about Wales. I absolutely understand the issues in Wales, and it is the case that there are different regulations in England and in Wales. But that is devolution. However, the Government strongly encourage passengers to wear face coverings for the entirety of their journey. Of course, we have continual conversations with the devolved nations on these sorts of matters, but I reassure all noble Lords that, as yet, no significant issues have arisen on cross-border services.
Exemptions are a critical part of this face covering regulation. Noble Lords will understand that we will never get to 100%—if we did so, we would have done it wrong, as it would mean that people were not making full use of the available exemptions. The noble Baroness, Lady Randerson, wanted a definition of the difference between an exemption and a reasonable excuse. I think an exemption is something that would apply all the time, as a person would be exempt for a certain reason. A reasonable excuse, however, could involve someone who is fleeing violence or in another situation that may not apply all the time but meant that, at that moment, that person had a reasonable excuse not to wear a face covering.
The list is not exhaustive; for example, there are exemptions for children, and the noble Lord, Lord Blunkett, raised a very important point about people who rely on lip reading and facial expressions. We want people to take a pragmatic approach where, if they feel that they should be exempted, they should be. We are working closely with the transport operators. We have been talking to them about the amount of training that staff will have to make sure they are aware that these exemptions are in place. A number of operators have a badge, lanyard or card scheme—one such scheme was mentioned by the noble Lord, Lord Faulkner. I believe that these help and I am encouraging transport operators to put them in place, but their use is entirely optional. Certainly, it is not expected that people should have to wear a lanyard to get an exemption; we have to be pragmatic.
I want especially to thank the noble Baroness, Lady Finlay, and the noble Lord, Lord Rennard, for sharing the work they have seen on identifying symbols for those who might benefit from extra protection; this was very interesting and I was extremely grateful. I reassure the noble Baroness, Lady Barker, that we are working to get the message out—particularly to those who can help us to target specific groups which may not be fully aware of the exemptions.
A number of noble Lords commented on children under 11. Our equalities impact assessment found that it would be difficult and impractical to require primary school children to wear and keep on a face covering. However, we still recommend that children between the ages of three and 11 should wear a face covering. The noble Baronesses, Lady Watkins and Lady McIntosh, talked about transport for schoolchildren. This will be really important, particularly as schoolchildren return in September. We are following scientific advice; in many circumstances—particularly for children who use local-authority procured coaches or other vehicles—they will be travelling in bubbles, either within their own year group or, at least, within their own schools or a couple of schools in the area. They will therefore not be mixing with a vast number of people with whom they do not usually have contact. That is the difference between schoolchildren and other people, and why we do not feel that children on school transport need to wear face coverings. We did an equalities impact assessment on this, which included considerations relating to BAME groups and advice from the Disabled Persons Transport Advisory Committee, to ensure that we understand what exemptions and other issues might arise.
I am pleased to say that the current level of compliance between 22 and 28 June was 91%. There will always be circumstances where noble Lords have seen people who are not complying—I completely agree. The noble Baroness, Lady Jolly, mentioned young men. I too am concerned about young men. Perhaps they are enjoying the new-found freedoms of the pub and, on leaving, find it all too easy to forget to put a face covering on. Perhaps the mantra for young men should be, “spectacles, face covering, wallet and watch” before leaving the house; we will have to see whether that catches on.
On enforcement, this is an incredibly delicate balance. At the moment, we are looking at engagement rather than enforcement, although we are ramping up enforcement because we feel that people have had time enough for this message to sink in. We will also continue to work with transport operators; on the point raised by my noble friend Lady Wheatcroft, any abuse of transport operators or staff will not be tolerated. Some transport operators are changing their conditions of carriage to make sure that they can apply these face covering regulations as broadly as possible. Children between the ages of 11 and 18 cannot be given a fixed penalty notice; I do not feel that that would be right. However, they can be asked to leave a service just as anyone else can be—that is how this will be enforced.
On the question of why the regulations apply only to public transport, I have talked about why this is particularly important for public transport. However, the Government recommend the use of face coverings in all enclosed settings where social distancing is not possible, which would include shops, and, of course, we are keeping this policy under review.
I will have to write to noble Lords on taxis and PHVs, as well as on aviation, as I am running out of time. However, let me reassure the noble Baroness, Lady Barker, about the availability of face coverings, which is incredibly important. We have already distributed over 2 million face coverings to local transport operators. Network Rail has been installing vending machines at Network Rail-managed stations. I am sure that all noble Lords have seen the availability of face coverings online and in local shops.
I once again thank all noble Lords for their contributions. There will be a follow-up letter to this debate with further information. I beg to move.